Toolkit on the Exclusionary Rule in Mexico

Torture is a grave violation of human rights that undermines democratic principles, values and the rules that limit the state’s punitive powers.

Within criminal justice systems, torture prevents objective investigations and fair trials. Evidence gathered through torture should not be permissible. In Mexico, the use of torture makes a mockery of the fight against impunity for crimes.

It is impossible to know exactly how many people are currently being prosecuted or were sentenced based on evidence obtained via torture, but a recent study shows that in Mexico, 75.6% of the prison population suffered psychological violence and 63.8% suffered physical violence during their detentions. [1]

The following pattern is common: arbitrary detention, often violating the suspect’s privacy in their home, followed by a prolonged and unjustifiable retention in official or clandestine sites or by an unnecessarily drawn-out transfer.  During this time, the detained individual is subjected to torture. The victims of torture can be coerced to testify in a certain way or to abstain from testifying altogether. They may be forced to omit details about the circumstances of their detention, sign statements about photographic evidence, incriminate other individuals, handle weapons, or record statements.

Arbitrary detentions and torture affect people for the rest of their lives. As well as pain and suffering from the torture itself, victims of torture often face prison and incomprehensible judicial decisions, fear and frustration.  In short, justice is denied.

Fair Trials and IJPP hosted a series of meetings with the Network of Democratic Defense Attorneys in Mexico (REDD) between September 2019 and May 2020. From these meetings, it was clear that judges in Mexico are systematically refusing to exclude evidence obtained in a way that violates an individual’s human rights—including through torture and other cruel, inhumane, and degrading ways. It is also difficult to determine a standard of reasonability (“razonabilidad” in Spanish) [2] that can be used to ratify allegations of torture and other cruel treatments.

This toolkit is for defence attorneys representing clients who say they have been tortured during criminal proceedings. It has information for all stages of the criminal process and especially when asking for evidence obtained through torture to be excluded from criminal proceedings.

The toolkit is available in Spanish.

[1] INEGI, National survey of the incarcerated population (ENPOL, 2016). Available at: https://bit.ly/2tVAsYs.

[2] The Mexican Supreme Court has defined “reasonability” as 1) [The acts] be carried out based on the law and with a lawful end, and with a foundation upon which to act; 2) The force used be necessary for the end sought; 3) The force used be proportional to the circumstances presented. All of the above are framed by the fulfilment of the principles established in article 21 of the Constitution of Mexico, which provide the guiding principles for police activities and respect for all human rights. Supreme Court,  Ninth Period,  Thesis P. LII/2010, 162989, Semanario Judicial de la Federación, Vol. XXXIII, 2011, p. 66